Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 30 - Evidence - May 6, 2015
OTTAWA, Wednesday, May 6, 2015
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, An Act to amend the Controlled Drugs and Substances Act, met this day at 4:15 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our study of Bill C-2, An Act to amend the Controlled Drugs and Substances Act. Bill C-2 creates a separate exemption regime for the operation of supervised consumption sites in Canada. This bill was originally introduced in response to the Supreme Court of Canada's decision in 2011, more commonly referred to as the Insite decision.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the same website under "Senate Committees.''
To begin our study of the bill, please welcome the Honourable Rona Ambrose, the Minister of Health; and the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness.
Minister Ambrose is accompanied by the following officials from Health Canada: Hilary Geller, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch; Diane Labelle, General Counsel, Legal Services; and Jacqueline Gonçalves, Director General, Controlled Substances and Tobacco Directorate.
Minister Blaney is accompanied by Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies Directorate, Public Safety Canada; and Chief Superintendent Eric Slinn, Director General, Support Services, Federal Policing, with the RCMP.
Before we begin, I remind senators that the ministers are with us for just the first hour and officials will remain for the second hour.
Minister Ambrose, we will begin with your opening statement.
Hon. Rona Ambrose, P.C., M.P., Minister of Health: Thank you, Mr. Chair, for the opportunity to appear before the committee to provide an overview of the proposed respect for communities act. I'd like to take this opportunity to thank Senator Dagenais in particular for his leadership on this bill in the Senate.
Mr. Chair and members of the committee, the abuse of illegal drugs is a very serious public health and public safety concern. Simply put, dangerous drugs like heroin can destroy lives, tear families apart, and make our streets and communities less safe.
Through our government's National Anti-Drug Strategy, we have made significant progress to reduce both the supply of and the demand for these drugs, as well as addressing the crime that's associated with them. If passed, Bill C-2 would ensure that exemptions for activities involving the use of illegal substances at drug injection houses would only be considered once the criteria in the bill have been addressed.
These measures to address very real public health and safety risks are why I must also take a moment to inform the committee of my and the Minister of Public Safety's concerns about some recent comments from the Leader of the Liberal Party. In a recent media interview, Mr. Trudeau said that he "certainly wants to see more injection sites opened around the country.'' But I raise this because when we are discussing such a pressing public policy issue, I think that blindly committing to opening drug injection houses in communities across Canada is a deeply irresponsible approach.
I was very disappointed that this bill did not have the support of the Liberal Party in the house. I would ask all of the senators here today to review this bill with a fresh set of eyes.
As you all know, this bill would improve the review process when new injection houses are proposed. The key purpose of the respect for communities act is to improve the system which currently exists for reviewing requests for exemptions under the Controlled Drugs and Substances Act, or the CDSA.
Bill C-2 would amend the CDSA to create two distinct exemption regimes. The first regime would be for controlled substances obtained from legal sources. The second regime would be for controlled substances illegally obtained on the street. I think that this distinction is a highly important one. We are not changing the process for law enforcement or other professionals to undertake legitimate work with controlled drugs. Those provisions will remain intact.
This act will establish a special process for illegal drugs in order to address the very real public health and safety concerns created when drugs like heroin are being sold on the streets.
The bill sets out criteria that applicants for a supervised drug injection house would have to address before such an application could be considered. These criteria are based on the factors that were set out by the Supreme Court of Canada in its 2011 decision regarding the continued operation of Insite.
In this ruling, the court was crystal clear. They ordered that I, in my capacity as Minister of Health, must consider specific factors when reviewing applications that grant exemptions from Canada's drug laws allowing for such sites. I do not have an option to ignore those factors.
Those factors are included in this legislation and are as follows: evidence, if any, of the impact of such a facility on crime rates; the local conditions indicating the need for such a site; the regulatory structure in place to support the facility; the resources available to support its maintenance; and, most importantly, expressions of community support or opposition.
I feel that that last point about community support or opposition is particularly important for the committee to consider. Our government sincerely believes, and the Supreme Court agrees, that communities deserve a say when there is a proposal to build a drug injection house. The court wrote that their ruling was:
. . . not a licence for injection drug users to possess drugs wherever and whenever they wish. Nor is it an invitation for anyone who so chooses to open a facility for drug use under the banner of a "safe injection facility''.
Our government respects this ruling by the highest court in the land, and it is with that in mind that we're moving forward with the respect for communities act.
A final element I would like to focus on is how this bill would engage with regular Canadians who could be affected by applications for a supervised drug injection house. Under this bill, applicants must provide reports of consultations held with relevant health professionals, licensing authorities in the provinces and a broad range of community groups in the municipality that the proposal affects.
The bill also ensures that individual Canadians could be engaged directly. Specifically, the bill allows for the public posting of an application. Once posted, members of the public would have 90 days to provide comments and views on the proposed site.
Mr. Chair, as I conclude my remarks, I'd like to also point out some key testimony that was provided by witnesses during the committee study in the House of Commons. During that study there was broad support for including community views. In fact, the President of the Toronto Police Association said:
Police need to be consulted and have more dialogue and evidence on how this is going to impact our already taxed police resources.
When the President of the Ottawa Police Association was asked whether he thought that local parents and businesses should also be consulted, he was clear that, in his opinion, it was critical to have the opinion of local parents and businesses.
Furthermore, Waterloo's chief of police said that he was:
. . . pleased to see a clear process that will provide criteria for community consultation prior to a decision being made by the Minister of Health.
It was not only police organizations who spoke in favour of the bill. Many local organizations representing everyday Canadian families have also highlighted their views. Chris Grinham, from the organization called Safer Ottawa, had this to say:
. . . in order to begin tackling these issues, you must first bring everyone together from all sides. Let all opinions be voiced and heard.
So, Mr. Chair, I think it's clear that there is a real interest from Canadians to be more involved in the process. I believe the bill takes a balanced approach. I firmly believe we are on the right track, one that will contribute to the protection of public health and public safety of all Canadians, but most importantly allowing them to have a say.
I'd also like to speak briefly to our government's commitment to supporting Canadians who are struggling with substance abuse and addictions issues. Our government will continue to support treatment and recovery programs that work to get addicts off drugs while also working to ensure that our streets and communities are safe.
Earlier this year, I took part in the National Summit on Addiction Recovery, organized by the Canadian Centre on Substance Abuse, which brought together over 40 experts from a range of Canadian organizations that are devoted to recovery. I am committed to supporting Canadians who are looking to recover a drug-free life, and we will continue to build on our record, with roughly $13 million now being provided every year to support the provinces and territories in developing innovative approaches to drug treatment.
That said, Mr. Chair, I thank you for your time and will turn it over to my colleague Minister Blaney, who will also provide some remarks.
Hon. Steven Blaney, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Thank you, Mr. Chair. I want to thank our Health Minister, Minister Ambrose, for her leadership on that important file.
[Translation]
It is a privilege to meet with senators today to discuss issues of public safety related to Bill C-2, the Respect of Communities Act.
[English]
Mr. Chair, our Conservative government has a strong track record of taking action to protect Canadians. As a matter of fact, we expect to vote for Bill C-51, our anti-terrorism measure, tonight at third reading. That will be then sent for your consultation and for which I have already made myself available and met with your fellow partners.
Mr. Chair, our Conservative government is committed to give victims of crime a stronger voice in the criminal justice system. This bill includes Bill C-32, the Canadian Victims Bill of Rights — and I see our colleague here, Senator Boisvenu — which recently received Royal Assent.
We've also given police more tools to prevent crimes before they happen. You may be interested to find out that in our last budget we are investing nearly $300 million to fight terrorism above and beyond the fact that we have increased the funding for national security agencies by one third over the last decade.
[Translation]
We have strengthened legislation, so that offenders receive sentences that are in line with the seriousness of the crimes they have committed. All those initiatives always have the same shared theme — the safety of Canadians.
When it comes to the Respect for Communities Act, we will continue to take measures to ensure the safety of the Canadian public.
[English]
Law-abiding Canadians deserve to know what is happening in their neighbourhoods and they deserve the chance to provide input into decisions that could have an impact on their safety. As Minister Ambrose just said, it is now more critical when decisions are made about the location of supervised consumption sites.
[Translation]
Decisions about the location of those sites should not be made behind closed doors. They should rather be made, as the bill proposes, through a transparent and comprehensive process all concerned parties could participate in. Among those parties are residents, community groups, public health stakeholders, as well as police services and the provincial and territorial ministers in charge of health and public safety.
It is important for the stakeholders directly concerned to be at the discussion and decision table. They must have an opportunity to be heard. That is the objective of this bill. The legislation will ensure that all requests made by an organization to set up a supervised drug consumption site would be subject to a thorough evaluation before the Minister of Health makes a decision.
[English]
Obviously, possession and consumption of dangerous drugs like heroin creates inherent risks. Law enforcement and community members must be consulted. Canadians deserve to know that their kids are kept safe from drug addicts.
Mr. Chair, since our Conservative government first came to power nine years ago, we have taken great strides to tackle drug-related crime in our communities. We have made significant investments in the National Anti-Drug Strategy, which aims to combat the production and distribution of illicit drugs. We continue to support crime-prevention programs through the National Crime Prevention Strategy, working to help at-risk youth steer clear of drug-related criminal activity.
We've passed laws that put in place tougher mandatory prison time for serious drug offences, including those carried out by organized crime and those that target our children.
[Translation]
In short, our government is firmly committed to ensuring community safety and reducing the rate of drug-related crimes. The Respect for Communities Act is an important bill that will support our efforts in this respect.
Thank you, Mr. Chair.
[English]
The Chair: Thank you, ministers.
We'll begin the questions. I'll point out to senators that we have roughly 45 minutes, so I hope you'll keep that in mind, as the ministers will be departing roughly 45 minutes from now. We'll begin with Senator Jaffer.
Senator Jaffer: Thank you to both ministers for your presentations. As always, we appreciate your presence here. I have two questions. I hope I can ask both of you one question.
My first question is to Minister Blaney. Minister, I've been looking at this bill and scratching my head because I have all my working life worked in downtown Vancouver. When my children were younger, we had injection needles, everything on the ground. When I went to work, they would pick them up and I was just petrified. When this bill comes into place, I'll have the same issues with my granddaughter because when Insite is in place, there is a safe place for people to have their injections. I believe this bill will take that safe environment away.
The Supreme Court of Canada clearly said that your discretion was not absolute; you had to look at section 7 of the Charter of Rights and Freedoms when it came to life, liberty and security of person. I believe that this bill does not address the section 7 issues that the Supreme Court of Canada set out. Can you show me where that is set out?
Mr. Blaney: Senator Jaffer, I thank you for your question. First, I would like to reassure you that any legislation presented by the government is reviewed by our Department of Justice. While we cannot give it 100 per cent assurance, we are fully confident that this is constitutional and fully meets the decision that was rendered by the Supreme Court. I thank my colleague, the Minister of Health, for coming to that balance.
The second question you've asked would be, frankly, a question I would ask you. You have children. I have children. What this bill is doing is saying: Do you think you should be consulted if we were to open a consumption site just in front of your house? That is what this bill is doing.
Senator Jaffer: Minister, I have no issue with consultation. I was going to come to that as my second question, which is for Minister Ambrose. I have no issue about consultation. I am asking you about section 7 of the Charter of Rights and whether it meets the test. With respect, I don't think so. The chair will cut me off, so I'll ask the Minister of Health.
Minister, where I live, we have one hospital, St. Paul's, that looks after heart patients for all of the Lower Mainland. If Insite does not exist, the people who will suffer will go to St. Paul's Hospital. It's an issue of resources. Insite has saved $17 million. My concern is this: If Insite does not exist, then we will again have a strain on St. Paul's Hospital.
I know that you spent a lot of time in British Columbia and I appreciate that. I am not questioning consultation with the community. I applaud you for that. My concern is use of resources. I know that you don't pay for resources; resources come from the province. But my concern is: How have you addressed the issue of public health when you take away a site? For me it is either you pay for a cheaper Insite or you pay for an expensive hospital to look after people. I would like you to address the issue of public health.
Ms. Ambrose: I don't think those things are mutually exclusive. I think that they both operate on different levels.
In terms of Insite, my understanding is that Insite has the support of the community.
Senator Jaffer: Yes, it does.
Ms. Ambrose: The issue of resources is addressed in this bill. One of the things the Supreme Court's ruling identifies and we've put in the bill is that there has to be a discussion around resources, whether or not there are appropriate resources to support the maintenance of one of these facilities. It's not enough just to say I want to open one of these up. You have to consult with the provincial public health authorities. You have to consult with the local municipalities. You have to consult with the police.
Senator Jaffer: There are 26 exemptions here.
Ms. Ambrose: That also includes issues around resources. So whoever the proponent is would have to have resources identified to be able to maintain the site.
[Translation]
Senator Dagenais: My first question is for Minister Blaney. I am familiar with Insite, as I got close to it with Tom Stamatakis, of the Vancouver police force. You are saying that Vancouver police officers do not patrol the site, perhaps for safety reasons. I am happy to hear you say that, in order to have a supervised site, we have to think about the community's safety, and that fairly stringent criteria will be applied.
I imagine there will be applicants and rules to follow. Can you tell us more about this, as well as about safety at Insite? I want to draw your attention to the fact that Insite attracts people from other provinces, as there are no such facilities elsewhere in the country. So many people, including from Quebec, go to Vancouver because they know about Insite. I would like to hear what you have to say about safety measures, and then I will have a question for Ms. Ambrose.
Mr. Blaney: Thank you for your question, Senator Dagenais. I understand your interest, given your decades of experience with the Quebec police service and your concerns about public safety. I also had some concerns, but we have prepared the bill so as to comply with the requirements of the Supreme Court decision, while maintaining public safety as one of our priorities. That is why our police forces will be consulted during the eventual implementation process of a supervised injection site, as will the Quebec minister, for instance, and the public safety ministers.
That said, the problems related to the public safety of an injection site create an unhealthy microcosm with a high concentration of individuals with serious substance abuse problems. That has absolutely disastrous consequences in the site's immediate vicinity, where some of the issues are prostitution and crime.
We also have to consider human health and human dignity. Senator Dagenais, you had the opportunity to visit the site. We have to aspire to a better model for developing society instead of creating pockets of utterly blatant human misery.
I want to assure you that, when it comes to public safety, police authorities will be consulted. However, we have to keep in mind that this is an extremely significant challenge for public authorities and security services, as they have to make the difficult decision of planning the implementation of such a facility.
Senator Dagenais: I have a short question for Ms. Ambrose. When it comes to supervised injection sites, Senator Jaffer alluded to hospitals. Will the authorities periodically be ensuring that the injection site rules are being followed?
[English]
Ms. Ambrose: Yes. I think that's the important thing about having evidence-based information from the various stakeholders that are impacted and also having very thorough consultations and the feedback from those stakeholders.
I find it interesting that the issue that's garnered the most attention is public consultations, even though it seems like a no-brainer that you would consult with the public and the local neighbourhood if you were going to give an exemption to a proponent to allow for illicit drugs to be injected in that neighbourhood.
The other parts of the bill that I think are incredibly important, which actually haven't garnered much attention, is around the evidence that would come forward through these consultations and work we would do with local public health authorities and police. The kind of evidence that we would ask the proponent to submit is things like the number of people who consume drugs within the vicinity of the area, things around deaths, potentially related to overdoses, infectious disease issues, and are there resources in the community to support these kinds of problems that could come with the injection house? All of those things speak to actually helping the person who is addicted.
The Chair: We'll move on to Senator Joyal.
Senator Joyal: Welcome, Minister Blaney and Minister Ambrose.
In reading the bill, I have the impression that your interpretation of all the requirements you will have to consider before issuing a permit is an indirect way to contradict the recognition that the Supreme Court has recognized in section 7 of the Charter. In other words, the requirements are so ramified to an extreme that at the end of it, it's equivalent, in fact, to negate.
You have insisted a lot on elements of community reaction and so forth, and I agree with you. I'm not sure I would like to have a site in front of my house. I agree with that. Section 7 is a very serious section of the Charter. Section 7 deals with the integrity and the life of people.
When the Supreme Court, in my own reading of the jurisprudence of the court, interpreted that section and came to a conclusion that an act of Parliament or an administrative decision contradicts the protection of section 7, they are much more keen on understanding the obstacles that would impede the respect of the bodily integrity of the people.
As much as I understand some of the conditions, some are totally admissible, like a letter from the municipality, a body that is responsible for public good, but when you talk about "community,'' "community'' is not determined. It could be anything. It could be a group such as the Knights of Columbus or a group of REAL Women or any group. It's easy for anyone to find someone in a community group who would be opposed to one thing or another. You know that. You're a politician and address community groups in your daily life.
I feel that the bill's weight of requirement tilts, in fact, a decision in favour of a restriction of section 7 that would not meet the reasonable test of section 1. That's my first reaction on the reading of the bill.
Ms. Ambrose: Yes, and I've heard that criticism before. First of all, what I would say is we need a framework, which is what the Supreme Court said we needed. We need a framework to deal with the issue.
We have people who are addicted to heroin. They have it illegally and are consuming it. There are proponents that want to open up places for them to be able to shoot up what is a very dangerous drug.
When I look at what we've identified in the framework to actually make sure these people who are addicted to very serious and dangerous drugs are not going to be impacted, then I look at what the public health authority will do. Are there going to be resources available? Are there drug treatment resources available? Does the police force have the resources to deal with this in terms of the criminal activity that could come with this? Is the neighbourhood going to be impacted? All of those things need to be taken into consideration.
What I would say to you is if you have one specific criterion that you think is onerous, I would ask you to identify it. Because when I look at them, I think they are very reasonable. There are many of them, but I think together they provide a framework.
This is very serious, providing an exemption under the CDSA for the injection of heroin. People overdose and die. This is a very serious issue.
Yes, there are many criteria, but I think this is worthy of that, that we create a strong, comprehensive framework to deal with this issue. If there's a particular criterion that you think is onerous, I'd be interested to know which one.
Senator Joyal: There is one, for instance, where you ask the variation of the crime factor in the area for such a period of time, and so forth. I'm surprised that it goes to that extreme limit of information while, in fact, we have had bills at this committee in past years that have requested us to determine the level of sentencing and the level of crime. We asked for some additional information based on scientific information and, unfortunately, we were left wanting.
I say that without doing politics. I'm just trying to understand, as I say, the weight of the bill, the refinement of information you need.
I'm not questioning that heroin is a very serious drug. As a matter of fact, I would not advise anyone to take heroin. If I knew someone using heroin, I would do my best to have that person taken to treatment. That's not the issue.
The issue is to try to determine how much we can satisfy the criteria that have been established by the Supreme Court. In my opinion, this is the only issue we have to deal with. The rest is a matter for the police to look after.
[Translation]
Mr. Blaney: The point you raise has more to do with public safety, and that is what we were talking about earlier with Senator Dagenais. When we carry out a study on environmental impacts, we always wonder how the community will be affected. Here, we are talking about setting up a site. What you are referring to are the potential consequences the planned activities on the site could have, and we have research and data on that. All that data is available in Canada, as we have a history. We can see the devastating effects crime, prostitution and socio-economic deterioration have on the surroundings of this kind of a site.
The data is easily accessible and can be consulted, as is the case in other fields. The data provides fundamental criteria on public safety and, I would say, it is justified in the sense that it helps assess the impact of setting up an injection site. That is part of the framework decision makers can use to determine the relevance of this kind of a facility.
[English]
Senator Batters: Thank you very much for everyone being here today, and a special welcome to Minister Ambrose. I think it might be the first time that you've appeared before the Standing Senate Committee on Legal and Constitutional Affairs, certainly as long as I've been on the committee anyway.
I appreciated hearing in your opening statement about the different treatment and recovery options that are always paramount. Obviously, I've spent a lot of time and effort in the last several years, because of a personal tragedy, trying to help people with the very important issues of mental illness, and a close corollary of that is substance addiction. It's a very complex problem, and recovery can be extremely arduous.
I'm wondering if you could tell us a bit more about what our federal government is doing to help people who are addicted to drugs.
Ms. Ambrose: I'd be happy to. I think that's an important point about the legislation, not to forget that at the end of the day we want people addicted to heroin to get help, to have access to resources so that they can lead a drug-free life. The people that are addicted, as you well know, have families and live in communities and workplaces, so they do need our full support.
I also have to commend you. You won an award last night for the work you've done on this very issue, called Champions of Mental Health. Congratulations. We were there last night to celebrate that.
Our government has obviously taken a very strong position with our anti-drug strategy, and there are a few pillars in that: enforcement, prevention and treatment. We have in our National Anti-Drug Strategy $45 million per year and that goes to everything, such as partnerships with the provinces, community programming in the area of prevention. Of course, Minister Blaney is on the enforcement side, but prevention and treatment is a big part of it, educating young people especially about the harms of drugs, and on the prevention side, helping people get out of a life of addiction and find recovery, which is so incredibly important.
One thing I wanted to point out is that in the National Anti-Drug Strategy, just this year we expanded that to make prescription drug abuse eligible for that programming across the country, which is becoming a very serious issue across Canada. It is already a crisis issue in the United States, but we're seeing it now in pockets across Canada.
There are a lot of good things happening across the country. I would say we've seen quite a bit of success. I point to the recent report on marijuana use by teens. I was really happy to see that, whether it's been our ad campaigns or work that happens in schools. At one point, Canadian youth was the number one consumer of marijuana per capita in the world, according to UNICEF. We see now in the latest report that that usage is down by 25 per cent. So we're getting our message out to young people about marijuana, and I think we have to continue to do that. That's what it's all about, raising awareness to keep kids away from drugs and support those who might become addicted to a prescription drug, which is equally as serious but even more challenging because they're quote/unquote safe and kids don't realize they can actually hurt themselves.
Senator Batters: On that, May 9, coming up, is National Prescription Drug Drop-Off Day. I wanted to give you a brief opportunity to mention that as a public service.
Ms. Ambrose: I appreciate that. That's something that Minister Blaney and I do together. In fact, the national chiefs of police across the country have led the charge on National Prescription Drug Drop-Off Day. That is to ask people to go into their medicine cabinets, clean out anything left over they have so kids can't get their hands on them, take them to the local police station or take them to a drug store and make sure they're disposed of properly. Don't flush them down the toilet.
The Chair: Thanks for that. We'll move on.
Senator Fraser: Welcome to the committee. Minister Ambrose, you said you were surprised that people weren't actually looking at the criteria. Well, that's what has fascinated me in this bill. They are numerous. An applicant, before the minister even considers it, has to provide material in 26 categories and 17 subcategories. That makes 43 different categories of material that has to be provided. Just in case the preceding 42 were not sufficient, the forty-third is "any other information that the minister considers relevant.''
Then, once the applicant has gone through all that — and it's extremely detailed information that is required — the minister may not grant an exemption until "after having considered the following principles.'' What is then listed are not principles. They are considerations, not principles: "(a) illicit substances may have serious health effects.'' That's not a principle. There are six of them that the minister must consider, and they're all negative. They're like the Leaning Tower of Pisa; they all lean in the same direction.
It would seem to me that the minister should also take into account other considerations, such as the fact that the Supreme Court and your government's own expert advisory committee and the experiences of 70 cities around the world have shown that supervised consumption sites actually save lives, actually reduce health costs and actually reduce the proliferation in the neighbourhood of things like what Senator Jaffer was talking about, used needles and whatnot. But none of that is there, not even the consideration of the cost-effective use of public resources, both in terms of staff and dollars.
Then after all those things have been taken into account, the minister may still only allow an exemption for the creation of a site in exceptional circumstances.
Do you really expect any supervised site to ever win approval under this system? That's a serious question.
Ms. Ambrose: Can I answer now?
Senator Fraser: Yes. That was a question.
Ms. Ambrose: Thank you.
As I said to Senator Joyal, I know there is a lot, and I would ask you, if you go through, specifically is there an area that you think — when you say it's like the Leaning Tower of Pisa, these are things that the Minister of Health, because of public health issues, must ask for. I need all this information if I am going to make an assessment.
I can reassure you that any information with regard to public health that would make a positive point obviously would be submitted. Any evidence would be submitted to the Minister of Health for consideration, and we expect that we would do our due diligence around that.
Again, I would just go back to saying it is a comprehensive framework, but it's also a very serious issue to give an exemption for the consumption of illegal drugs in a site like this. It is of interest to the local public health authorities. It's of interest to the local police, the local community. It's very clear also what we need from the proponent, and my sense is they will be willing to provide it.
Senator Fraser: You asked for specifics. Well, I gave you some specifics about the principles, to use the words of the bill, "considerations'' in my language, that I think should be taken into account.
For example, to require information about other drug treatment services doesn't seem to be relevant. It is interesting, but not relevant, in that the absence of other drug treatment services would presumably increase the need for something like Insite, if they've got nowhere else to turn. Do you understand what I'm saying? That struck me as being unnecessary and very burdensome.
Ms. Ambrose: My experience with proponents of sites like Insite is that they know exactly what it is that we're asking for and, in fact, they have a lot of that information at their disposal to provide the government.
Senator McIntyre: Thank you to both ministers for your presentations.
My understanding is that in crafting this legislation, Justice officials were guided by the Supreme Court of Canada ruling in which it made clear that five factors must be considered by the federal Minister of Health in making a decision. In other words, balance public safety with public health.
Minister, you indicated that we need a legal framework. Is there a process or legal framework currently in place that meets the criteria set by the Supreme Court?
Ms. Ambrose: No.
Senator McIntyre: There's none?
Ms. Ambrose: No. That's why we had to respond with a piece of legislation. This bill was the response to the Supreme Court ruling. So there isn't. The minister can still consider things.
Senator McIntyre: And that's why we have this bill?
Ms. Ambrose: Yes.
Senator McIntyre: Okay. Very well.
[Translation]
Senator McIntyre: Minister Blaney, could you briefly tell us about the Portage centre, which is located in your riding? I think that organization is funded by the Quebec provincial government and by Health Canada.
Mr. Blaney: Thank you, Senator McIntyre. Indeed, there are always two approaches in terms of health and prevention. Portage is basically a substance abuse rehabilitation centre. There are four such centres in Canada, and one of them — which I am very proud of — is located in Saint-Malachie. It's an old ski chalet that was converted to a treatment centre for young people who want to break their drug habit. The clients are provided with guidance so that they can turn their lives around. We are seeing some exceptional and fascinating things happening in that small Irish community.
I am happy to tell you that I joined them in the St. Lawrence River crossing this summer. A young athlete, who had unfortunately developed a drug addiction, spent some time at the Portage treatment centre, and she challenged me to try to keep up with her while swimming across the St. Lawrence. The river is two kilometres wide, after all. This shows how much we, as a government and an institution, can help young people become drug free. I am extremely proud to have accepted the challenge of that young woman who, thanks to the treatment centre, has broken her drug habit.
[English]
Senator Plett: Well, minister, my money is on her, just in case you do want to make a little wager.
I have a quick question to both of you.
Minister Ambrose, Senator Joyal did mention a couple of community groups: REAL Women, the Knights of Columbus.
Last night at the event that you were speaking about, where Senator Batters got the award, I was there as well and happened to speak to a City of Ottawa councillor, who said that the City of Ottawa had made a decision that they didn't want any of these sites in the City of Ottawa, obviously not in response to this bill; I guess they had just done that.
In regard to the consultation and the exemptions, would you consider a municipality or a city saying that they don't want a site as a good enough reason not to have a site there, or would there be other consultations?
Ms. Ambrose: The way the bill reads is the Minister of Health would take into consideration all of these voices. I think that's the important part. Obviously municipalities are one of the groups that we would consult with, but we also consult with public health officials, the police and the neighbourhood. I think it was the fellow from Safer Ottawa who said at the committee in the House of Commons that if you want to tackle these really tough issues, you actually have to talk about them, bring people together and let them discuss what the good and the bad is. It's messy and I'm sure it will be difficult, but when you're doing something this serious, I do think you need to get everyone in a room to talk about it. People need to be educated. That's the opportunity for groups that are pro and against. After all that information comes in, then the Minister of Health will take everything into consideration.
Senator Plett: On that note, and you did mention the police would be involved as well.
This question is directed to either one of you. Tom Stamatakis of the Canadian Police Association said:
. . . my experience in Vancouver is that these sites also lead to an increase in criminal behaviour and disorder in the surrounding community and have a significant impact on police resources. . . .
Obviously, as the police are dealing with drug users and addictions on the front lines, I would imagine that they have some fairly direct insight. Could either one of you comment on some of the issues that law enforcement have experienced with these sites in their communities?
Mr. Blaney: Yes. Thank you, Senator Plett.
This is certainly a challenge for a law enforcement authority when such a facility is installed because, as I've mentioned, it creates a microcosm of criminality and prostitution. There are many people — sometimes the individual, to get their drugs since they're not necessarily working — that either fall into prostitution or they commit crime. So you see peaks in those sorts of crimes. Law enforcement has to dedicate special units, special task forces, and actually has to develop particular skills, if I can put it that way, to deal with this environment which I would say is, in some way, almost unrealistic, because this is far from reality. This is really concentrating and creating a critical mass of individuals with serious drug addiction. Certainly, this is why it is so important that in this legislation that we make sure that those who would be impacted by such a facility are consulted because they would and will have to live with the consequences, and they are dramatic.
[Translation]
Senator Boisvenu: I want to welcome the two ministers. I think there are two aspects to section 7 of the Charter. We have to consider people with very serious substance abuse problems who are endangering their lives, but we also have to think of the safety of Canadians. I think the section applies to both aspects. I am personally mostly interested in the safety of Canadians.
I spent about 15 years with the Quebec Department of the Environment, and I would say that the most difficult projects to implement and integrate within a community were those that did not involve constituents in the decision-making process, especially when officials were making decisions behind closed doors. For years and years, we were in constant confrontation with citizens, since they had not participated in the decision.
It is the same thing with halfway houses for sexual predators. Every month, I get calls from constituents who learn that a halfway house will be established in their neighbourhood, and they were not informed about it. I applaud the fact that constituents will be informed and will participate in the decision-making process.
My question is for Minister Blaney. What approach do you plan on adopting, so that Canadians do not get carried away? Uninformed people often develop negative preconceptions. How can constituents be properly involved in the decision-making process, so that the project would always remain positive within a community?
Mr. Blaney: Thank you for your question, Senator Boisvenu. You are totally right that a transparent and open consultation process is key to success in the implementation of any project, especially when the project is as important as this one. Communities could feel that there may be certain benefits, but that is why they must participate in the early stages of the process.
How can we ensure that the process does not get out of hand? Thanks to the bill, various criteria and stakeholders have been established. Mechanisms are also established, namely for operating an injection site, so as to reassure the constituents regarding measures that have to be implemented — measures as basic as ensuring that those promoting such a facility do not have a criminal record. So there is a process, and the fact that constituents know that a consultation process and oversight exist at the injection site is a responsible approach that will help avoid debates getting out of hand.
[English]
Senator White: Thanks to all of you for being here.
I have been to the supervised injection site on three different occasions in Vancouver. I saw the facility and the surrounding area. I talk to people in the area and heard them talk about, "If we had known and had realized that the police would be spending $3 million extra to police the area and that the facility would cost almost $3 million to manage, then we would have had other suggestions.''
My question is simple. This was developed in part to satisfy the Supreme Court of Canada, but I think as well to ensure that communities didn't have the "I wish I had known'' discussion, having the Supreme Court make the decision for them and having input beforehand, so that the decision was well thought out and that the engagement piece was strong. Having been the Chief in Ottawa, there wasn't a place that I thought my community would have accepted it, but I did want them to have the voice to say whether they would or wouldn't. Isn't that our goal here really? It is to give them that involvement and opportunity?
Ms. Ambrose: It is, but also it's to balance the public health and safety aspect of this because there are public health issues. There are those proponents who will obviously submit evidence that this could be a public health benefit.
But there are consequences, because it's heroin. These are people bringing in drugs off the street to inject. There's a public safety component.
The Supreme Court decision, I thought, was a good one, and it's quite specific. I think the bill addresses some of those issues very well.
Firstly, their decision required the Minister of Health of the day to consider any evidence around the impact of such a facility on crime rates. Also, we must consider local conditions, indicating the need for such a supervised injection site, if this is something that's necessary, also that the applicant submits relevant information on the number of persons who might use the facility. We don't want to promote this kind of activity, so is it something that is necessary in the community? Also on things like information on the number of people with infectious diseases that might be related to the consumption of illicit substances that are in the vicinity.
We must consider whether or not there's support, such as resources available to maintain it, whether it's the police or public health, to also support the people who are affected and addicted because, at the end of the day, it's heroin. There are safe alternatives to heroin. There are safe treatments. We want people to have those available. We want the community to have those kinds of resources at their fingertips. If they're not in support of this, that's not going to happen. I think it is important that that discussion is very transparent.
If there is support for it, then there will be things the community and the municipality will have to do, and even the province potentially, to equip the surrounding community with the resources that they need. You can't just plop these things down in neighbourhoods. That would make absolutely no sense.
So I think this creates a good framework. It is very comprehensive. I get that. But all you have to do is look at the seriousness of the issue, and I think that asking for this kind of information is not onerous.
Senator McInnis: Thank you for coming here. It's an intriguing and interesting bill.
The Supreme Court of Canada set the table regarding what you had to do in terms of these particular sites. As federal ministers, you have to govern for all Canadians. Senator Fraser mentioned — and she is quite right — that it's an exhaustive list, but I wouldn't know how you could go into a province and bring about one of these sites, or more than one, without dealing with the provincial health authorities, the health departments. You have to deal with the police, with the local governments and with the public. If you don't do that, then it's not fair; it's not democratic in any sense of the word. I make that comment because I thought it was exhaustive as well, but I wouldn't know any other way around it if you're going to balance health and safety.
I want to ask you this question: What in fact is the success rate of Insite? How many lives have been saved? How many diseases have been prevented? The proponent is going to need deep pockets to get into this because it will take a period of time to do it.
Is the money wisely spent in this direction, or should we be looking at a better form of national drug policy? Minister Ambrose, you mentioned that $13 million was transferred to the provinces. You can clarify this. I take it that it's specifically for rehabilitation and that type of thing, because you do as well transfer huge sums of money to the province with respect to health.
Tell me, what is the evidence that this works?
Ms. Ambrose: The important part of this framework is that the proponent will have to provide that evidence. You're right that there is only one site in Canada, so pretty much all the evidence would more than likely — because it is within our federation in terms of health and safety and all of the applicable laws and regulations — look at what's happened in Canada. That would be where most of the evidence would come from. I've seen some of it, but I'm no expert.
My issue is that this framework, I think, is a fair one. It takes into consideration the pros, the cons, all the people involved and all the people affected. Part of that will be that the proponent will have to come forward with evidence not just that there's been success but that they can establish success in this particular community. A lot of factors go into making sure that the people that are addicted will get the support they need, not just the support of a place to go and inject heroin. There has to be a lot more around it than that. That's where they will have to provide evidence that in this particular neighbourhood we feel that there's this level of support, and I think that's fair.
So there is a lot of work for the proponent to do, but I think —
The Chair: Minister, I'm going to have to jump in. There is one final question, and I'm assured it will be a very brief one.
Senator Baker.
Senator Baker: It certainly will be, Mr. Chairman. I have just one question, but I'd like to have many questions of the officials after the ministers leave.
Regardless of whether one supports this bill or not, I want to say what a great job Minister Ambrose has done over the past few years on behalf of the Government of Canada in bringing forward its policies. Minister Blaney fits into that category as well.
Here's my question, though, minister. I want for you to say whether or not the minister has unfettered discretion as far as the decisions under this bill are concerned. Do we have unfettered ministerial discretion, given the fact that Insite will now have to meet the requirements of this bill and given that the Supreme Court of Canada has said:
The effect of denying the services of Insite to the population it serves . . . is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics. . . .
There has been no discernible negative impact on the public safety and health objectives of Canada during its eight years of operation.
That was in reference to Insite.
I would like for you to verify that regardless of what is the content of these 27 criteria, the Minister of Health, he or she, will have unfettered ministerial discretion on the granting of the provisions under this act to Insite.
Ms. Ambrose: My impression of how I read the bill is that the minister has to take into consideration all of the factors. In fact, I think that these kinds of decisions will also be much more transparent with this framework. The minister, behind closed doors, decides yea or nay, as opposed to everything is on the table. The evidence is there. The public consultations are open. Within those public consultations, the proponent or those opposed can make their case and provide research. The case would be made out in the open. As I said, the minister would then take all of that into consideration when looking at an application that's before Health Canada.
The Chair: Ministers, thank you both very much. We appreciate your appearance before the committee and your testimony.
We will now formally welcome the officials. I think we did that earlier but we'll reinforce it. Welcome. Thank you for being here. We'll begin the questions with Senator Baker.
Senator Baker: I have just a couple of technical questions concerning the bill. When I look at it, the preamble, of course, is new. The first three or four pages are just minor changes to existing provisions of the Controlled Drugs and Substances Act. Then I get over to sections 55 and 56 of the existing act. But the bill adds a new subsection (2). I don't know why you would add that subsection. Subsection (1) is already there. Proposed subsection (2) says that:
The minister is not authorized under subsection (1) to exempt from the application of all or any of the provisions of this Act. . . .
That includes provisions that are presently in place under this act or the regulations.
Now, the exception comes after the exemption by the minister. It's obvious that the minister can't do what that says the minister can't do. Why is that in there? Is there any particular reason, or is it just there?
Diane Labelle, General Counsel, Legal Services, Health Canada: There is a reason, if I may, senator. The bill proposes to divide section 56 into two regimes. The first aspect of the new regime is to exempt from the application of the act or regulations activities with licit substances. The second part is to create an exempting power to address those requests dealing with illicit drugs and activities with respect to those drugs.
The provision then goes on to say that the minister is bound to follow the proposed criteria. He or she may not exempt themselves from a statutory obligation or responsibility from the application of the act.
Senator Baker: I asked this question of the minister. I'm asking it now to Ms. Geller, who perhaps would be better qualified to answer. I'll get back to Ms. Labelle in a moment.
Does the minister have unfettered discretion under this act?
Hilary Geller, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch, Health Canada: Yes, she does.
Senator Baker: Hear, hear. Regardless of the answers that are given to any of these.
Let me get to the next page, page 6, under "'designated drug offence' means,'' and the bill refers to an offence under various sections of the Narcotic Control Act and the present act, which is the Controlled Drugs and Substances Act. Then the bill refers to an offence against certain sections. I'm presuming that you are excluding simple possession of any drug under this section because the bill says, "an offence against section 4, 5, 6, 19.1 or 19.2 of the Narcotic Control Act. . . .''
Possession is under section 3 of the Narcotic Control Act, the old act. Then the bill says, "an offence under Part I of this act'' — which is the CDSA — "except subsection 4(1),'' which is simple possession of any drug under Schedules 1, 2 or 3.
Am I correct in saying that a designated drug offence under this act does not include the possession of any illegal drug under the Controlled Drugs and Substances Act? Am I correct in assuming that?
Ms. Labelle: Senator, you are correct.
Senator Baker: Thank you.
Now, let's get to a problem area that I think you have under this bill. Let me go to page 12.
Some of us here in the Senate have a long institutional memory that goes back to the mid-1980s with legislation. This is a provision that says that anybody who works in a facility that we're talking about under this act — it talks about:
(x) a document issued by a Canadian police force in relation to each person referred to in paragraph (w) —
— that's somebody who is working in the facility —
— stating whether, in the 10 years before the day on which the application is made, in respect of a designated drug offence or a designated criminal offence, the person was
(i) convicted as an adult,. . . .
Then it says:
(ii) convicted as a young person in ordinary court, as those terms were defined in subsection 2(1) of the Young Offenders Act, . . . 1985, immediately before that act was repealed. . . .
The Young Offenders Act had a provision in it — I believe it was subsection 45(1) — that said all records of young persons shall be destroyed after three years if it's a summary offence and after five years if it's an indictable offence.
Under this act, why are you now requiring somebody to produce a record that old, although as a young person, as a youth, those records are supposed to be destroyed under the provisions of that act as it was in those days?
Ms. Labelle: If I may, senator, the provision you're referring to exists in the current Controlled Drugs and Substances Act. As you correctly point out, it is outdated because it has been superseded by the Youth Criminal Justice Act. The reason that provision is there as still referencing the Young Offenders Act is because of a slight possibility of a carry-over. So the provision would only apply if there was still someone in the process at the time that the act was repealed, but they were still in the judicial process and were convicted at that point in time.
Senator Baker: As a youth?
Ms. Labelle: As a youth.
We're now 10 years later, so it seems less and less likely that they would have to produce such a record. If the record has been destroyed, then there is nothing to produce.
[Translation]
Senator Dagenais: When it comes to applications for establishing sites, it says that applicants who would like to establish a site will have to provide information about themselves. What will happen if they cannot provide all the required information? What does the legislation stipulate in that case?
[English]
Ms. Geller: Thank you for the question. Very simply, in approximately half of the criteria, you'll notice the words "if any.'' If the information doesn't exist in one of those areas where it says "if any,'' the applicant would simply say that they do not have information about whatever the criteria is. That would form part of the dossier that goes to the minister. The minister would just be aware of that fact when considering the body of the application. There's no requirement to create information, in other words.
[Translation]
Senator Dagenais: With your permission, Mr. Chair, my question has to do with semantics. I see that the expression used for those sites is "supervised consumption sites'' instead of "supervised injection sites.'' Can you explain that change to me?
[English]
Ms. Geller: It's simply to take account of the fact that the minister could receive an application to conduct activities with illicit substances that aren't simply restricted to injecting them. They could, for instance, at some point, receive an application for a supervised inhalation site, for example. The reason is just to make the language broader.
Senator Jaffer: If I could get a clarification, my colleague Senator Baker asked about unfettered discretion of the minister, and you agreed. I may be wrong on this, but I didn't think ministers had unfettered discretion. Doesn't the Charter come into play?
Ms. Geller: Yes, you're absolutely right. We probably should have described what we meant by unfettered discretion. The minister always has to make any decision in the context of the Charter. That's absolutely clear.
Certainly what I mean by it, and Senator Baker will tell me if he meant something different, is that when the minister receives all of this information, she takes it into account with an unfettered mind. She will look at it all, consider it in its totality and give it the appropriate weight. The decision that she makes will always have to be made in light of the Charter, but it's not predetermined. She doesn't have any sort of bias that would lead her to decide that no matter what the information shows, it's going to be a "no,'' for example. That's what I meant by unfettered discretion.
Senator Jaffer: The Supreme Court said very clearly said the minister doesn't have absolute power.
Ms. Geller: She does not have absolute power, that's clear. The Charter cannot be ignored, that's absolutely right.
Senator Jaffer: The challenge I'm having with this is that when I read the Supreme Court decision, it speaks about the five factors. I look at those very carefully and then I try to reconcile them with the 26 exemptions.
Senator Fraser: Forty-three, if you include the sub-exemptions.
Senator Jaffer: I'm having real difficulty and I'm genuinely seeking your help. Have you gone further? The way I see the exemptions and how I read the Supreme Court decision, it doesn't say you have to consider all five factors. It says you have to consider these factors. That's how I read it. Maybe I'm wrong. When I see 26 — plus more my colleague says — I'm just not able to. How did you come to 26 exemptions? I need some help.
Ms. Geller: Yes, thank you for the question.
All five criteria have, to be more specific, we've given specific examples of information to be submitted that we can tie directly to one or the other of the five criteria, with one exception, which we felt in recommending this bill was a relevant criteria, but it's not easily related to one of the criteria, and that is treatment services, which came up earlier. We have actually mapped all of the criteria asked for, all 26, to one of the five that were mentioned by the Supreme Court. Certainly our reading is that all five do need to be taken into account by the minister. You can't pick and choose.
Senator Jaffer: I read it that not all five, but anyway.
The way the exemptions are based is the minister would look at it solely from a medical point of view and not scientific, or am I mistaken?
Ms. Geller: Yes, proposed subsection 56.1(2) has three possible areas that you can apply for an exemption: "medical, law enforcement or prescribed purpose.'' The difference from previously was "scientific'' was there. It isn't there anymore; "public interest'' was there and it isn't there anymore. "Medical'' remains the same.
Senator McIntyre: Our colleagues have raised the issue of section 7 and I just want to make this clear. I hope I understand this.
As mentioned by the minister, the purpose of Bill C-2 is to provide the legislative framework in order for her to exercise her exempting powers in keeping with the direction issued by the Supreme Court of Canada.
In reviewing the decision by the Supreme Court, it strikes me that the Supreme Court has not taken issue with the discretion exercised by the minister but the manner in which that discretion is exercised. As mentioned by Senator Jaffer, the minister's discretion is not absolute. It must be exercised within the constraints imposed by the law and the Charter.
Bearing all that in mind, under the proposed bill the minister would be provided with information coming from the applications and, armed with that information, would be in a position to make an assessment of the public health considerations as well as the public safety considerations that arise in a particular case.
This, in turn, would assist the minister in balancing those two considerations — public safety and public health — in accordance with section 7 of the Charter and in the manner described by the Supreme Court.
Am I right in my assumption? That's the way I understand the bill.
Ms. Geller: That's absolutely correct.
Senator McIntyre: Is there anything else to add there? That explains the discretion, as far as I'm concerned.
Ms. Labelle: To confirm what you were saying, senator, the very purpose of Bill C-2 is to provide a legislative framework for the minister to exercise her exempting powers in keeping with the direction given by the Supreme Court of Canada.
Under the proposed bill, the information that would be provided in support of a request for or obtained in relation to an exemption to conduct activities with illicit substances at a supervised consumption site would, as you stated, senator, inform the minister's assessment of the public health considerations and the public safety considerations. This is the crucial element: This information must then be balanced in accordance with the section 7 rights of life, liberty and security of the person guaranteed by the Charter.
Senator McIntyre: In other words, the information would help her to make an assessment?
Ms. Labelle: Yes, and I believe this is why the minister would have said she needs this legislation. When I hear her say that she needs the legislation, I understand it to be that it provides her the framework and access to the information that she needs in making that assessment.
Senator McIntyre: The applications contain something like 27 criteria, so there's nothing wrong with that. It provides her with more information.
Ms. Labelle: Yes, and if I may, some of the criteria, which seem extensive, are actually things that are required now under various regulatory regimes. For example, the Narcotic Control Regulations require criminal background checks. For example, in the case of exemptions for other establishments, they too need to provide information on who the key personnel are who will be on duty and who is qualified. There are things in the bill, for reasons of transparency and openness, that might normally have been set out in a regulation.
Senator Joyal: Thank you and welcome.
The problem I have with this bill is the system that it puts in place. As you've said, the minister has the power and the discretion. The minister mentioned in one of her earlier answers, she would withdraw behind closed doors.
It seems to me that when you grant to an authority, be it a minister or an agency, the power to decide on the life and liberty of a person — because that's what section 7 is all about and that's what the Supreme Court recognized those injection sites have as an effect, i.e., an impact on the life and liberty of the people who frequent or visit those places — there is no real legal protection for the person who seeks permission to open that site.
In other words, there is the first step, which is gathering information, wider or less wide, and we can debate that. We've raised that issue. The next step is that when all that information is there, there is no capacity to argue on it. The minister is the sole and only authority, and the minister has no obligation to hear the person in the context of the respect of fundamental justice. The Supreme Court in its decision has as much insisted — I will read it:
The Minister's failure to grant a s. 56 exemption to Insite engaged the claimants' s. 7 rights —
— we agree with that —
— and contravened the principles of fundamental justice.
The principles of fundamental justice, when you seek an authorization, is the capacity to have your day in court. You don't have your day in court with this bill. The minister is the sole person to take all that information, ponder it, balance it, come forward and say, "Okay, I have decided. This is it. Thank you. Good-bye.''
It seems to me the process that has been put in place is lacking that aspect of the responsibility of the minister to act alone in his or her sole discretion without the airing of the proof in a system that ponders the pros and cons, comes to a conclusion and then with an appeal mechanism — because we're dealing here with section 7, bodily integrity, which is a serious decision on the consequences on a person's life. So when I try to understand the rationale of this bill, I find it wanting, especially in that other aspect of the decision of the Supreme Court.
Ms. Labelle: If I may, senator, there are two aspects to your question that I would like to address.
To begin with, the Supreme Court of Canada recognized the importance of having section 56 and the nature of that discretion as a constitutional safety valve. The minister's discretion is there for the very purpose of relieving application of the act where it would be arbitrary, grossly disproportionate or simply unjust. That's the first part. That's the importance of having that discretion available.
The second part, I believe, is that every public official who has a duty or an obligation to make a decision is bound to follow procedural fairness. Whether the statute is explicit about it or not, that duty to apply procedural fairness exists.
Senator Joyal: Where in the bill?
Ms. Labelle: The common law and the civil law of Quebec have recognized the application of procedural fairness requirements when public officials are under a legal duty to make a decision.
The minister, having gathered all the information and had an opportunity to assess it, depending on the outcome — I can't pre-judge how a minister would decide — if there is an indication or a concern with a particular aspect of the application, the minister would then be required to give the applicant an opportunity to respond and to be heard. That process could be in writing or oral. Those are things that could be established later.
Senator Joyal: But why does the bill not contain a clause whereby the Governor-in-Council could produce regulations to determine the hearings and the rights of the person to be heard and, as you said, the essential elements of procedural fairness up to an appeal of a decision? It seems to me that in relation to previous common law or the civil code, as you stated very well, in reference to previous decisions of the Canadian court system in a long tradition, when a discretion is granted to a public authority, especially if it involves the life and security of the person, the process has to be tight, very clear and strict to make sure that the decision that is taken is really the best decision in the circumstance, because there is a process of pros and cons. That's essentially why we have those administrative tribunals, and they are reviewable by the Supreme Court or by the superior court of a province.
That's why I feel there is a part missing in this bill. Not that I'm opposed to having criteria. We can debate the extent of the criteria. The procedure or process to achieve that decision has, in my opinion, to satisfy, as you said, procedural fairness. There's no guarantee in the bill that that will be the case.
Ms. Labelle: The procedural fairness element is closely scrutinized by the courts. If an applicant feels that procedural fairness was not followed —
Senator Baker: Or natural justice.
Ms. Labelle: We call it procedural fairness at this point, but that's fine. These are included in the principles of fundamental justice.
There are several ways to have this lack of procedural fairness addressed. The first and perhaps the easiest and the least costly is to go through judicial review and have the procedural fairness rectified. Hopefully the Supreme Court Insite decision is clear enough that no one will feel like they have to challenge from a Charter perspective again. But that would be the other avenue, to begin an action should they feel that principles of fundamental justice were not followed.
But in terms of having to expressly provide for procedural fairness in the statute, that's not a necessary precursor, let's say, to the decision making. It is there. It is carried through. It's implicit by the common law. It's a legal duty that's attached to every official who has a decision-making power. As I said, this is something that the courts closely monitor, and really that is within their jurisdiction to ensure that an individual's right to procedural is respected.
Senator McInnis: That was exactly going to be my question. I just want to educate myself with respect to this, because that was the problem that I had.
I take it that there's some approval for a proponent to go forward. The proponent goes forward and does all of this work and then presumably comes back to the minister and makes the presentation. I presume they'll be able to make a presentation. There would be huge documentation with respect to consultation, police reports, provincial health reports and all of this type of thing. Then it's left for the decision of the minister. Is there an appeal process? I think you just said that the person will have the right at least to question if there's a rejection.
Is this analogous to what's taking place now with marijuana — this is a terrible analogy — where there are a number of applicants across the country? Is it similar to that? There's got to be due process here. I agree. Why wouldn't this be in the regulation? There's a lot of money that a proponent would spend to get to this point, and then to be told "no,'' surely there has to be the opportunity for questions and so on.
Ms. Labelle: Applicants do have an opportunity to be heard. As I said, this is a legal requirement placed on every public official that has an obligation to make a decision.
Your analogy is applicable here in the sense that applicants under the Marihuana for Medical Purposes Regulations have the same right to procedural fairness. In that regime, the criteria are even more specific and much narrower. Yet, if the decision maker thinks or sees an indication that there's a problem or there may be a refusal, the decision maker under that regime also has to provide the individual with an opportunity to be heard.
Senator McInnis: And if they don't?
Ms. Labelle: Well, then it's lacking in procedural fairness and the individual can turn to the courts and ask for judicial review of the decision-maker's actions.
Senator McInnis: And then we'll really be into time. It's going to take long enough to get through this process, and now we have to go to court.
Ms. Labelle: As I said, I'm not assuming it will end in court. I think we have to assume that the minister would take the proper steps to ensure procedural fairness is followed.
Senator McInnis: We've seen a lot of litigation on this particular file already.
Ms. Labelle: On substantive issues, yes.
Senator Fraser: Thank you very much. I'll try to be quick and you're going to have to keep your answers fairly quick, otherwise the chair will lower the guillotine. I know him too well.
First, on the community consultation requirement, I think Senator Joyal made an excellent point about who gets to decide in the absence of a definition of "community.'' Who is the community?
Secondarily, I'm a bit perturbed by the requirement that this broad range of community groups be in the municipality concerned. Municipal borders are funny things. The one in which I live, for example, has a funny extension over here where nobody lives, but it's surrounded by other municipalities. It would be easy for my municipality to say "dump something over there.'' Everybody in my municipality would say "Oh, great; sure, good.'' Not just an Insite facility, but an abattoir, or whatever. People in the other municipalities might be seriously affected.
So why did we phrase it this way? Why did we give that vague "community'' word and then tie it down to a specific municipality?
Ms. Geller: I think the shortest answer to the question is that the applicant will sort of decide on the community. They will choose the community, consult with the community and provide the reports on the community. The minister will review that. The minister always has the possibility, if he or she would like to have more information, to ask the applicant to provide more. Hypothetically speaking, if there was some concern that the community wasn't cast broadly enough — that is, it excluded certain groups — the minister could ask the applicant to provide further information on that point. It provides a reasonable degree of flexibility, I think, to the applicant.
Senator Fraser: "Municipality''?
Ms. Geller: How would you define "municipality?''
Ms. Labelle: There is a proposed definition of "municipality'' in the bill. I think as ADM Geller mentioned, the definition of "community group'' is very supple. Those who have an interest could join any other community members in that community to express their views.
For example, if you are the Elizabeth Fry Society in the community of Espanola and you happen to reside just outside the borders of Espanola but you volunteer with the Elizabeth Fry Society, then you can easily join that group and have your views taken into account.
Senator Fraser: I do have one other topic to raise. The minister was asking me which of the criteria bother me. I was flipping through this because there are five pages of criteria. Here's the one I was looking for and didn't find while she was here. Criterion (y)(ii) refers to the need to produce a police record from a foreign country, a foreign offence committed in that country, when the applicant, say a staffer at a centre, was between 14 and 18.
Now, if this was somebody who moved from the State of Washington to Vancouver or the State of Maine to New Brunswick, you could see that it would be feasible — the judicial systems in question would be sufficiently comparable to our own — that we would have some faith in whatever documentation might exist.
What about people who come here from countries like Afghanistan or Mexico, possibly Colombia, who, as teenagers, get caught up in what amounts to a civil war in which the drug business is a central element and a country in which we cannot necessarily have the same faith in an incorruptible judicial system that we can have in our own? If it is possible to get the police record for those people, which is a separate issue, how does the minister then judge the importance of the fact that an Afghan teenager was caught up in something bigger than he or she 10 years ago and now is in Canada building a new life and wanting to work as a staffer in a constructive, healthy way?
Ms. Geller: The purpose of "why'' is to make sure that the minister is able to take into account whether there's any criminal history with key people who will be working in a facility. In particular, (y) references (w), which is the "responsible person in charge.'' That's the person who has to be in the facility at all times — there are often more than one of them — and who is overall responsible for the operation of the facility. Among their responsibilities would be the collection of any leftover illicit substances left behind and ensuring their proper recordkeeping and destruction. A key security measure has always been to ensure that for folks who work in the facility, particularly in key positions, there are detailed criminal record checks involved as a security measure.
Senator Fraser: I'm sorry to interrupt. Subparagraph (y)(i) I can understand because it's adults, but subparagraph (y)(ii) refers to kids going back 10 years.
Ms. Geller: It would be a 10-year history. We would anticipate this would be unusual circumstances, as Diane mentioned earlier, but there are some technical reasons behind it, which I will ask Diane to explain.
Ms. Labelle: As ADM Geller has correctly pointed out, these provisions, these criminal background checks, are with respect to individuals who have responsibility for the health and safety of both staff and users of the site. Given the nature and level of responsibility, you then want to ensure that there isn't a criminal activity that has been tied to this individual that would put in doubt their ability and their capacity to carry through these functions.
An individual who simply wants to volunteer or work at the site is not required to go through the background check and so would be allowed to assist on the premise.
Senator Fraser: The answers I'm getting are the answers I'm getting.
[Translation]
Senator Boisvenu: My question is for Mr. Slinn and Mr. Bhupsingh. Have you previously worked in an area, an urban centre where this type of service was provided to a similar clientele? Do you have any related experience?
[English]
Chief Superintendent Eric Slinn, Director General, Support Services, Federal Policing, Royal Canadian Mounted Police: The only site we have currently is in the Downtown Eastside, and the RCMP arguably doesn't have jurisdiction there. To the best of my knowledge, I'm not aware of any other sites that are before Health Canada that the RCMP has jurisdiction over, so I really can't expand on that for you.
[Translation]
Senator Boisvenu: Mr. Bhupsingh, I think you have some experience in the borders and customs field, so the problems may be different. When you look at the bill, as a police and customs officer, do you see some positive aspects for the safety of constituents and those centres' clients? Given that there is a very high standard when it comes to issuing permits, how do you feel about this bill, Mr. Slinn? Do you think the heads of your police force are relatively satisfied with the bill's provisions?
[English]
Mr. Slinn: Well, first of all, I think we have to act on the belief that wherever you have drugs, you have criminality. There's a link there. I think an analogy is probably the best way I can put it to you. Organized crime and drug traffickers look for applicable markets to market their drugs. If you're looking to sell Senators' tickets, you don't stand down in the Market to sell them. You go to the best place to sell those tickets, and that would be at the stadium.
So there's a concern that the potential is that if you have a site, you are bringing a market for drug traffickers and organized crime to flourish — maybe not directly in that site area, but there is the potential for greater proliferation of drug sales. That's a real concern for law enforcement.
[Translation]
Senator Boisvenu: Are you reassured by all the criteria that will enable the authorities to issue these kinds of permits?
[English]
Mr. Slinn: Absolutely. First and foremost, law enforcement is entrusted with public safety. The first key in that is the public and consultations with the public. The RCMP, or any law enforcement organization in Canada, doesn't make exclusively by themselves a decision such as whether there should be an Insite facility in the community. We consult with many different community consultative groups to listen to their concerns, to present them with data or research that we may have, so that we collectively make an informed decision as to whether that site is applicable in that area.
[Translation]
Senator Boisvenu: Are you also reassured by the fact that constituents are participating in the process?
[English]
Mr. Slinn: Absolutely. We police the community. It's their community, and we're responsive to their needs.
Again, we don't make those decisions in isolation. We take into account the community needs and wants, and our decision is shaped around what the community does want.
Senator Batters: Senator Jaffer referenced the Supreme Court of Canada's Insite decision from 2011 and the five factors that the Supreme Court of Canada identified. I would like you to give us more information about those five factors and to tell us more about the kind of information you're asking for from applicants.
Ms. Geller: As I mentioned earlier, we've actually mapped each of the criterion in the bill, except for one.
Criterion 1 is evidence, if any, on the impact of such a facility on crime rates. Paragraph 56.1(3)(s) asks for:
(s) relevant information, including trends, on loitering in a public place, that may be related to certain activities involving illicit substances. . . .
Criterion 2 is where local conditions indicate a need for such a supervised injection site. Paragraph 56.1(3)(t) asks for:
(t) information on any public health emergency in the vicinity of the site or in the municipality in which the site would be located that may be in relation to activities involving illicit substances as declared by a competent authority. . . .
That's an example and there are many others.
Criterion 3: the regulatory structure in place to support the facility, if any. Paragraph 56.1(3)(v) asks for:
(v) a description of recordkeeping procedures for the disposal, loss, theft and transfer of controlled substances . . . at the site;
Criterion 4: resources available to support the site maintenance. There is one, and that is paragraph 56.1(3)(q), which asks for:
(q) a financing plan that demonstrates the feasibility and sustainability of operating the site;
Finally, criterion 5: evidence, if any, of the community support or opposition. There are a number of those, including a letter from the provincial Minister of Health expressing their opinion, a letter from the local government of the municipality expressing their opinion, et cetera.
Senator Batters: That was very helpful. Thank you.
Senator White: My question is a follow-up to the minister's response earlier. In looking at this, and I know you've been involved in the drafting of the legislation, was there any point at which you advised the minister that it would be unlawful to put that requirement in the legislation?
Ms. Geller: No, but we will also ask that of our legal counsel, Diane Labelle, whose "no'' would be more authoritative.
Ms. Labelle: As senators are aware, as legal counsel, I cannot provide the legal advice that was given to the government, because of concerns of waiving solicitor-client privilege. I can confirm that, as with all bills, Justice does scrutinize them for conformity with the Charter and with the Canadian Bill of Rights. Had there been an issue, the clerk would have been advised.
The Chair: We have time for a brief second round. Hopefully we can get on the list every senator who wishes to pose a question, if we can tighten them up and the responses are comparable.
Senator Baker: I only have one question. Senator Joyal pointed out that there is no provision in the bill for an appeal to the minister's decision. Ms. Labelle, you said that the common law would apply to appealing decisions of officials or ministers, so we should get on the record exactly what the procedure is, and you can correct me if I'm wrong.
The normal procedure to challenge a decision of a minister or of an official of the government is to apply to a superior court for an order of the certiorari, first, to strike the decision, then to apply for an order in the nature of mandamus to replace that decision. Is that what the intention of the government is if somebody wishes to challenge the decision of the minister?
Ms. Labelle: Since you referred to the principles of common law, I would like to first clarify that before a minister makes a final decision, that minister has an obligation to provide the individual with an opportunity to be heard if there is a problem or a potential refusal of that individual's application.
Having said that, once the decision is final, then there is section 18.1 of the Federal Courts Act, where an individual can file for judicial review on several grounds, two of which you've mentioned, and to seek a declaration that the decision is either confirmed or invalid, and then sent back to the minister for reconsideration. In some cases, the courts will make the decision as they did in the Supreme Court of Canada in the Insite decision.
Senator Baker: This is very important because there are no provisions in this bill. When you look at every other piece of federal legislation, if you're appealing an income tax provision, you go to the act and it says, "Here's your appeal, and here are the guidelines in which the judicial review will be done.'' The judge cannot replace the official's decision but can refer the matter back to some other persons within the administration or another minister to reconsider. You know what I'm talking about.
The question is, on the record: What you're saying is that this means that somebody who wishes to appeal the minister's decision will go to the Federal Court under section 18.1, which is the appeal procedure, seeking certiorari to strike down the minister's decision and then an order of mandamus, which would replace the minister's decision and what they wish to do with it.
Ms. Labelle: As I mentioned previously, that is one avenue open to an applicant who feels they have not been treated fairly. There are also the other avenues where they could begin a challenge, for example, if there are Charter implications and Charter rights weren't respected.
In terms of the legislation itself, it reflects and is consistent with all the other pieces of legislation under the responsibility of the Minister of Health. In the Food and Drugs Act, for example, there are important decisions made under the act. Decision makers under that act are bound to act in accordance with procedural fairness. Pharmaceutical companies have access to the courts for judicial review or other types of actions.
[Translation]
Senator Dagenais: I have two quick questions for Mr. Slinn. How will you deal with the monitoring of crime and the social tolerance imposed by this legislation, so as to avoid being publicly criticized for every intervention? I do not see how you will manage to reconcile crime and public tolerance.
[English]
Mr. Slinn: Absolutely. I think it's fair to say that we always try to strike that balance. Where I draw your attention there is the RCMP's priority on the organized crime groups and the significant drug traffickers who are bringing the heroin into the country and who are bringing it down to the users.
I think it's fair to say we don't expend a lot of resources on individual users. We appreciate that that's a health issue. Our focus is on the organized crime groups and those drug traffickers that are taking advantage of those individuals.
The other side of the coin is, as I mentioned earlier, we won't make this decision in isolation. We see our role as a body or as a representative of the community to get their input and to simply give them our experience with drug trafficking and crime in specific sites and take the feedback from the community and represent their interests best, not the interests of the RCMP.
[Translation]
Senator Dagenais: You do not currently have any centres similar to Insite, but I assume you are talking to other police forces. Have you made any projections on the level of crime this kind of injection site may lead to, including when it comes to drug trafficking, prostitution and physical violence?
[English]
Mr. Slinn: I'm not aware of any specific research that the RCMP has done, but I can say that if there was an application in our specific area, we would do a thorough analysis to determine those links to make sure we inform the community to the best of our ability what could happen if a site were to be established in their community.
Senator Fraser: Am I correct in my assumption that if somebody does make it through the hoops and get an exemption from the federal minister — and this is what I want to have confirmed on the record — it cannot override provincial or municipal rules on things like provision of health care services or zoning?
Ms. Geller: Yes.
Senator McIntyre: What about the rules for renewals? For example, I'm thinking about Insite. Would there be additional criteria?
Ms. Geller: There are two additional criteria for renewals, which basically have to do with what people have seen in the community in the period of time since the exemption was granted. For example, what has happened to crime rates? It's just an update, a snapshot, of what's happened since an exemption was provided.
Senator McIntyre: In other words, once the bill becomes law, the process would apply to any applicant, including Insite?
Ms. Geller: That's right.
Senator Joyal: I would refer you to page 5, proposed subsection 56(1), the exemption. It allows the minister to grant an exemption from the application of all the provisions of this act. What is the purpose of this exemption if you are so sure that public interest is served by all those criteria that are listed in the act?
Ms. Labelle: Senator, could you repeat the section that you're looking at? I'm on page 5.
Senator Joyal: Page 5, clause 5: "Section 56 of the Act is replaced by the following.'' In the margin next to 56(1): "Exemption by Minister.'' I asked you a specific question in relation to that. Do you want me to repeat the question?
[Translation]
Ms. Labelle: This provision is in accordance with the provision currently in the legislation. That provision maintains the minister's discretionary power to make a decision on substances from an illicit source. So she can take into account various public interest criteria, but the difficulties are not the same when illicit substances are used or involved in certain activities.
[English]
Senator Jaffer: On the issue of consultation, is there a process? The minister talked about consultation. I kept thinking of NIMBY. Nobody wants this in their neighbourhood, so how will you weigh the consultations?
Ms. Geller: The reports on the community consultations will be just one of a number of factors that the minister will take into account, along with all the others and the totality of the information that he or she has in front of them.
It goes back to fettering discretion. No criteria, in and of itself, if there's a yes or a no or a positive or a negative, would not necessarily be determinative. It would be how the individual minister weighed the totality.
The Chair: Thank you, witnesses. I very much appreciate your contribution to our deliberations.
Members, I want to point out that tomorrow we have a large contingent of witnesses appearing before us, so it's our intention to start at 10:30 sharp. Hopefully you can all be here.
(The committee adjourned.)